Seven years after the UK Supreme Court decided that the payment of fees to bring Employment Tribunal claims was unlawful and should be abolished, the Government has published a consultation paper to reintroduce fees in the Employment Tribunals (“ET”) and Employment Appeal Tribunal (“EAT”).

The old fees regime was first introduced in 2013, and categorised ET claims into “Type A” or “Type B” claims.  Type A claims had an issue fee of £160 and a hearing fee of £230, totalling £390 in fees.  Type B claims, which covered more complex disputes such as whistleblowing and discrimination, had an issue fee of £250 and a hearing fee of £950, totalling £1,200 in fees.  EAT claims had a £400 issue fee and a £1,200 hearing fee, totalling £1,600 in fees.

The fees requirement proved to be very controversial with some arguing that it was too expensive and made access to justice inaccessible for many.  Ultimately, in its 2017 decision in the case of R (Unison) v The Lord Chancellor,the UK Supreme Court dismantled the fees regime, deciding that the fees were unlawful on the grounds that:

• they were in practice too costly for claimants; and
• they effectively prevented access to justice, in particular for non-monetary and low value claims.  The fee structure also was found to be indirectly discriminatory against women and other protected groups, who were more likely to bring Type B claims.

In January 2024, the Government’s new consultation states it has carefully considered the lessons learned following the Unison judgment, especially in relation to affordability, proportionality, and simplicity.  

The key points to note from the consultation include:

• The proposed new fee is a more modest £55, which would be payable by the claimant on bringing an ET claim.  There would be a further £55 to bring an appeal in the EAT.
• The fee would apply to claimants and appellants respectively, regardless of the type of claim or track under which a case is categorised.
• There would be no fee payable at the final hearing stage.
• Where the claim is brought by multiple claimants, the fee would remain at £55 and the claimant would be treated as a single entity.
• For a limited number of exempt claims, the fee would not apply, including claims against the national redundancy fund, and claims for failure to collectively consult in large scale redundancies.
• There would be a fee remission scheme for those unable to afford the fee.

Given the more modest level of fees and simplicity of the fee structure proposed, the Government appears to be working hard to ensure that the current proposal is safe from legal challenge.

The consultation ends on 25 March 2024, after which it remains to be seen if the Government will use up some of its remaining parliamentary time to implement this proposal before the general election later this year.

Stay tuned for further developments.

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